Keicher v. Town of Hamburg , 737 N.Y.S.2d 740 ( 2002 )

—Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered September 8, 2000, which, inter alia, denied the motion of defendant Scott Mackert for summary judgment.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action seeking to recover damages for injuries that he sustained while playing the position of goalie during a floor hockey game. Plaintiff was struck in the facemask by the hockey stick of Scott Mackert (defendant) immediately after plaintiff either caught or juggled a ball shot on goal by defendant. Supreme Court properly denied the motion of defendant seeking summary judgment dismissing the complaint against him. A participant in a sport assumes all commonly appreciated risks inherent in that sport but does not assume the risks of reckless or intentional conduct (see, Morgan v State of New York, 90 NY2d 471, 484-485; Zielinski v Farace, 291 AD2d 910 [decided herewith]). Here, defendant failed to meet his initial burden of establishing his entitlement to judgment as a matter of law (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). The deposition testimony of an eyewitness submitted by defendant in support of the motion raises an issue of fact whether defendant’s conduct constituted a “flagrant infraction [] unrelated to the normal method of playing the game and done without any competitive purpose” (Turcotte v Fell, 68 NY2d 432, 441) and thus was not a risk assumed by plaintiff. Present — Pine, J.P., Wisner, Hurlbutt, Kehoe and Burns, JJ.